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Federal appeals court addresses FMLA notice requirements

Managing intermittent leave under the Family and Medical Leave Act (FMLA) can be challenging for companies, especially if the employees requesting intermittent leave have fluctuating, unpredictable medical conditions.

Recently, the 6th U.S. Circuit Court of Appeals clarified the use of such leave in Render v. FCA US, LLC.

Background: Employee Render requested FMLA intermittent leave to manage his recurrent depression and generalized anxiety disorder. He provided medical certification indicating that he could not perform his job duties during a “flare-up of symptoms.” His request was approved.

Subsequently, Render used the call-in line on several occasions and reported he would be absent or tardy. While Render used language like “flare up” or “sick” he did not cite FMLA when calling out. Render’s absences were dubbed “unexcused,” and he was later terminated.

Render brought an FMLA claim against his employer. Initially, the federal trial court ruled in the employer’s favor, finding they had not received adequate notice. However, the 6th Circuit reversed that decision and provided clarification on an employee’s obligation to provide such notice.

Intermittent leave as foreseeable leave

The court explained that under FMLA regulations, an employee giving notice of the need for FMLA is not required to mention “FMLA.” At issue was whether intermittent leave is to be treated as foreseeable or unforeseeable.

Per the court’s interpretation, intermittent leave should be treated as foreseeable leave. The court fully acknowledged that this could “seem counterintuitive, since the point of intermittent leave is that an employee is asking for approved FMLA leave for unexpected and unpredictable absences.”

However, the court clarified that intermittent leave covers separate blocks of time taken for a single qualifying reason. To that end, the need for leave was foreseeable. Essentially, the employee’s need for leave is known, even if it is unknown when the condition will flare up and require time off.

Only one notice required

Additionally, the court addressed whether Render had to give notice every time he wanted to use FMLA-protected intermittent leave. As stipulated in the regulations, “Whether FMLA leave is to be continuous or is to be taken intermittently or on a reduced schedule basis, notice need only be given one time.”

As such, Render was not required to give formal notice every time he called out. He only needed to provide initial notice when he first sought intermittent leave.

Takeaways for employers

The 6th Circuit court has jurisdiction only over cases in Kentucky, Michigan, Ohio, and Tennessee. Nevertheless, other courts could come to the same conclusions.

Here is some general guidance on the issue:

  • Review your procedures for receiving and managing intermittent leave requests to ensure they are handled as foreseeable leave.
  • Check any system automation to ensure that employees on intermittent leave are not inadvertently categorized as “unexcused” after a call-out.
  • Educate supervisors on the organization’s requirements regarding intermittent leave. While unexpected absences can cause workload issues, managers must not retaliate against an employee using protected leave.
  • Ensure your call-in procedures are clear and consistent across every messaging platform, including communication from a third-party administrator, if applicable.

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